Ghanshyam vs State of M.P. and Others

Sujoy Paul, J.—With the consent of parties, matter is finally heard. The petitioner is aggrieved by order dated 12-1-2011 (Annexure P-1) whereby the competent authority directed to remove the petitioner u/s 86(1) of the M.P. Panchayat Raj Avam Gram Swaraj Adhiniyam, 1993 (Adhiniyam).

Shri G.S. Sharma, learned counsel for the petitioner submits that this order has been given effect to and petitioner has been discontinued. This order is called in question on the singular ground that before removing the petitioner, procedure mentioned in M.P. Panchayat (Discipline and Appeal) Rules, 1999 have not been followed. No enquiry has been conducted and outrightly petitioner is removed on the basis of Annexure P-7 which, by no stretch of imagination, can be said to be an admission of guilt by the petitioner.

Per contra, Shri Newaskar and Shri Himanshu Sharma supported the order and submits that petitioner was served with a show cause notice dated 3-7-2010 (Annexure P-6) and petitioner has not chosen to file his detailed reply and he has not denied the allegations and, therefore, the authority has rightly treated it to be an admission of charges. On account of petitioner''s admission, no enquiry was required and he was rightly removed from service.

I have heard the learned counsel for the parties and perused the record.

It is not in dispute between the parties that for the purpose of removing an employee, the statutory provisions of D and A Rules aforesaid must be followed. However, this is settled in service jurisprudence that when there is a clear admission of guilt, no departmental enquiry is required. The pivotal question is whether reply to show cause Annexure P-7 dated 8-7-2010 can be treated to be a clear admission of guilt. The relevant portion of Annexure P-7 reads as under:--

A microscopic reading of the reply of the petitioner shows that the petitioner has given certain explanation in reply to show cause notice. The petitioner has prayed for apology and further stated that if by mistake payment has been made, he is responsible and is ready to repay the amount. It is the specific stand of the petitioner that attendance was marked by the Mate and the petitioner has relied on such attendance recorded by the Mate and made the payment. Thus, petitioner has given explanation against the show cause notice and allegations mentioned therein.

This is settled in law that unless the admission of guilt/charges is specific, unconditional, unqualified and unequivocal, enquiry cannot be dispensed with. In the present case, the petitioner has put forth his defence and made an effort to show that he is not responsible for the charges and the payment was made on the basis of attendance certified by subordinate employee. Thus, it cannot be said that petitioner has admitted the charges in totality and without any explanation. In General Court Martial and Others Vs. Col. Aniltej Singh Dhaliwal, , it is held that an admission can be explained by the makers thereof. An admission is not conclusive as to the truth of the matter stated therein and it is only a piece of evidence, the weight to be attached to which must depend upon the circumstances under which it is made. In Jagdish Prasad Saxena Vs. The State of Madhya Bharat (now Madhya Pradesh), (now Madhya Pradesh), a Constitution Bench of Supreme Court held as under:--

Held that, as the statements made by the appellant did not amount to a clear or unambiguous admission of his guilt, failure to hold a formal enquiry constituted a serious infirmity in the order of dismissal passed against him, as the appellant had no opportunity at all of showing cause against the charge framed against him.

Even if the appellant had made some statements which amounted to admission, it was open to doubt whether he could be removed from service on the strength of the said alleged admissions without holding a formal enquiry as required by the rules.

On the basis of aforesaid test laid down by the Supreme Court, if Annexure P-7 is tested it will show that petitioner has given explanation against show cause notice and there is no unequivocal, unconditional, unqualified and specific admission of guilt by the petitioner. Thus, in the considered opinion of this Court, the respondents have erred in treating Annexure P-7 as admission of guilt. Consequently, the respondents have committed an error in not conducting the enquiry. On the basis of aforesaid analysis, Annexures P-1 and P-2 are liable to be set aside and I do so. Accordingly, Annexures P-1 and P-2 are set aside. However, liberty is reserved to the respondents to proceed against the petitioner pursuant to Annexure P-6 in accordance with law.